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Elisabeth A. Shumaker
Clerk of Court
No. 06-3111
KENNETH LYONS,
Defendant - Appellant.
This case involves a vehicle stop, which led to the discovery of fifty-one
pounds of cocaine hidden in the spare tire. Kenneth Lyons appeals from the
district courts denial of his motion to dismiss the indictment for want of a speedy
trial and denial of his motion to suppress evidence. In his plea agreement, he
waived his right to appeal from the resolution of the speedy trial issue and
therefore we dismiss that portion of the appeal. His suppression issues
(justification for the stop, continued detention after the stop, voluntariness of his
consent to search and probable cause to search) are properly presented. We
affirm with respect to the suppression issues.
I. FACTUAL BACKGROUND
On December 11, 2003, at approximately 10:00 p.m., Kansas Highway
Patrol Trooper Jarett Ranieri was parked in the median of Interstate 70 (I-70) in
Greary County, Kansas. His vehicle faced Eastbound I-70. Trooper Andrew
Dean was parked next to Ranieri. Both troopers had their vehicles headlights on;
there were no other lights on the roadway. Because Eastbound I-70 sits higher
than the median, Ranieri and Dean were parked on an incline, causing their
vehicles headlights to illuminate the undercarriages of passing vehicles.
While parked in the median, Ranieri noticed a white Chevy Trailblazer.
The body of the vehicle was dirty and salty but the spare tire attached to its
undercarriage was clean and didnt have a spec of road film on it at all. (R.
Vol. 3 at 16.) Based on the difference in weather conditions between that day
(clear and dry) and the previous one (snowy/rainy), Ranieri suspected the spare
tire had been placed on the vehicle that day. He also suspected the tire might
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contain contraband because in his experience spare tires are frequently used to
hide drugs. Ranieri decided to follow the vehicle and run its license plate
number.
Once Ranieri caught up with the vehicle, he noticed the license plate was
so dirty it was unreadable. Moving closer, he was able to read the plate but not
the expiration sticker. Ranieri also noticed the spare tire was hanging lower than
normal. Because the dirty plate and tag violated Kansas traffic law (Kan. Stat.
Ann. 8-133) and based on his suspicions regarding the spare tire, Ranieri
decided to pull the vehicle over. He activated his emergency lights.
Once the vehicle pulled over, Ranieri walked up to it from behind and
wiped away the dirt covering the expiration tag and the name of the issuing state
(Virginia) with his fingers. He then approached the drivers side window; Lyons
was sitting in the drivers seat. Ranieri told Lyons that he had stopped his vehicle
because its expiration tag was covered with dirt and unreadable and that he had
cleaned the tag. Lyons and his passenger, Letty Sierra De Maldonado, informed
Ranieri they had traveled to Denver, Colorado, for vacation and were heading
back to Fort Lauderdale, Florida. Ranieri asked for Lyons drivers license and
the vehicles registration. Lyons gave him his Florida drivers license and the
vehicles rental agreement. While standing at the drivers side window, Ranieri
noticed two cellphones (which in his experience are used by drug traffickers to
communicate) and a radar detector; he also smelt air freshener (which in his
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closest car wash was in Topeka. Ranieri stepped back from the car again. The
following discussion ensued:
Ranieri:
I was just going to ask you before you take off, I noticed you
kind of have a history . . . of drugs and stuff, do you . . . have
anything illegal in here . . . .
Lyons:
No.
Ranieri:
Lyons:
No.
Ranieri:
Lyons:
Ranieri:
Oh, did you call and get it extended? Okay, well that makes
sense then. But you wouldnt have anything illegal . . . in here
...?
Lyons:
Ranieri:
Lyons:
No.
Ranieri:
Okay, can I look in the back, would you mind if I looked in the
back?
Lyons:
Go ahead.
Ranieri:
Okay.
Ranieri went to the back of the vehicle to look for the tools to lower the
spare tire. As he was searching for the tools, he discovered four cans of Fix-AFlat Tire, which further raised his suspicions regarding the spare tire because he
had never seen Fix-A-Flat Tire in a rental vehicle. That led him to believe Lyons
and De Maldonado were concerned about getting a flat tire because the spare tire
was inoperable. Unsuccessful in finding the tools to lower the spare tire, Ranieri
retrieved a stethoscope from his patrol vehicle. He performed an echo test on
the tire with the stethoscope, which involves hitting it with an object and noting
the sound. (R. Vol. 3 at 34.) A normal tire will project a loud ring when hit
whereas a tire with something in it will project a low thud. When Ranieri hit the
tire with his ASP 1 baton, he heard a low thud.
Ranieri then asked Lyons if he knew where the tools to release the spare
tire were located. Lyons stated he did not know. Ranieri eventually discovered
the tools under the rear bench seat. Using the tools, Ranieri lowered the spare
tire. When he did so the vehicle rose up indicating the tire was very heavy,
reinforcing Ranieris suspicion that drugs were hidden inside. Once the tire was
lowered Ranieri pulled it from under the vehicle. It was extraordinarily heavy.
Using a knife, Ranieri cut the tire open, discovering fifty-one pounds of cocaine.
The traffic stop was captured by the video camera in Ranieris patrol
vehicle. Although normally the camera begins recording when the vehicles
emergency lights are activated, the cameras videotape was stopped on another
recorded traffic stop Ranieri had been watching before pulling over Lyons
vehicle. As a result, to avoid taping over the other traffic stop, the camera
automatically fast-forwarded to a clean portion of tape before beginning to record
in this case. Because of that delay the camera did not begin recording until after
Ranieri was already at the drivers side windowafter he had cleaned the license
plate and expiration tag. The record is confounded by another problem.
Although Ranieri wears a microphone, he forgot to activate it until he approached
the vehicle the second time to return Lyons paperwork. Therefore, the videotape
has no audio until this time.
II. PROCEDURAL BACKGROUND
Lyons was indicted for possession with intent to distribute more than five
kilograms of cocaine in violation of 21 U.S.C. 841(a)(1), (b)(1)(A) and 18
U.S.C. 2 (Count I) and conspiracy to possess with intent to distribute in excess
of five kilograms of cocaine in violation of 21 U.S.C. 841(b)(1)(A), 846 and
18 U.S.C. 2 (Count II). He filed a motion to dismiss the indictment, arguing the
allegedly prejudicial delay between the filing of the indictment and the time he
made his initial appearance violated his speedy trial rights. He also filed a
motion to suppress evidence, claiming the stop of his vehicle, his subsequent
detention and the search of his vehicle and its spare tire were all unlawful under
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knowingly and voluntarily waived his appellate rights; and (3) whether enforcing
the waiver would result in a miscarriage of justice. United States v. Hahn, 359
F.3d 1315, 1325 (10th Cir. 2004). A miscarriage of justice occurs when (1) the
district court relies on an impermissible factor such as race, (2) ineffective
assistance of counsel in connection with the negotiation of the waiver renders the
waiver invalid, (3) the sentence exceeds the statutory maximum, or (4) the waiver
is otherwise unlawful, i.e., the error seriously affects the fairness, integrity or
public reputation of judicial proceedings. Id. at 1327.
In his plea agreement, Lyons waived his right to appeal any matter in
connection with his prosecution, conviction and sentence except (1) matters
relating to suppression issues decided by the Court and (2) an upward departure
from the applicable guideline range. (R. Vol. 1, Doc. 43, Attached Plea
Agreement at 2.) Lyons challenge to the courts denial of his motion to dismiss
the indictment does not fit within either of these exceptions and therefore it is
within the scope of the waiver. See United States v. Najera, 87 Fed. App. 91, 93
(10th Cir. 2004) (unpublished) (concluding defendants conditional plea
agreement reserving his right to appeal his sentence and the denial of his motion
to suppress did not reserve his right to advance any argument under the Speedy
Trial Act). 2
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Lyons has not demonstrated his waiver was other than knowing and
voluntary. In his opening brief he merely states he reserv[ed] the right to appeal
the post-indictment delay, which he did not. (Appellants Br. at 3.) Moreover,
he did not file a reply brief to respond to the governments waiver argument. See
United States v. Anderson, 374 F.3d 955, 958-59 (10th Cir. 2004) (concluding
defendant had knowingly and voluntarily entered into appellate waiver because he
failed to claim otherwise on appeal).
Finally, we conclude enforcement of the waiver would not result in a
miscarriage of justice. The district court did not rely on an impermissible factor,
there is no claim defense counsel was ineffective in negotiating the waiver,
Lyons sentence did not exceed the statutory maximum of life imprisonment, see
21 U.S.C. 841(b)(1)(A)(ii), 846, and there is no claim that the waiver is
otherwise unlawful. Consequently, we enforce Lyons waiver of appellate rights
and dismiss his appeal from the denial of his motion to dismiss the indictment.
B. Motion to Suppress
Lyons argues the district court erred in denying his motion to suppress. He
challenges the initial stop of his vehicle, his continued detention after Ranieri
returned his license and other paperwork and the search of his vehicle and its
spare tire. In reviewing the denial of a motion to suppress, we accept the factual
findings of the district court unless they are clearly erroneous. United States v.
West, 219 F.3d 1171, 1176 (10th Cir. 2000). However, we review de novo the
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violation of K.S.A. 8-133 even if the vehicle is duly licensed in another state.). 3
Consequently, Ranieri was justified in stopping Lyons vehicle because he had a
reasonable articulable suspicion that a traffic or equipment violation was
occurring.
Lyons attempts to refute this conclusion are unavailing. Contrary to
Lyons arguments, Ranieris testimony is not the only evidence establishing the
license plate and expiration tag were dirty and unreadable. The district court
found, and we agree, that pictures of the license plate taken after the incident
support Ranieris testimony that he wiped away the dirt covering the expiration
tag and the name of the issuing state. But a lack of corroborating evidence would
not necessarily be fatal.
Ranieris testimony that the plate and tag were dirty and unreadable is
sufficient, if credible. The trial court found it so and we see no reason to disturb
the credibility determination. While Ranieris failure to insure his patrol
vehicles video camera was recording when he wiped the dirty license plate could
contribute to an adverse credibility finding, it is clearly insufficient to overturn a
The plate and tag were not illegible due to the current weather conditions
(the weather was clear and dry) or a factor outside Lyons control. See United
States v. Edgerton, 438 F.3d 1043, 1050-51 (10th Cir. 2006) (concluding no
violation of Kan. Stat. Ann. 8-133 occurs when the officers inability to read a
license plate or temporary registration tag is due to an external condition, i.e.,
snow, rain, fog, glare, or . . . an officers poor eyesight, as opposed to a factor
within the defendants control, i.e., mounting a license plate too low or leaving it
covered with dirt).
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favorable one. Also, the district court considered the equipment explanation
sufficient and so should we. The same can be said about the governments failure
to produce the warning ticket during discovery. 4 Ranieri testified he gave the
warning ticket to Lyons and the court found Ranieri credible, possible contrary
implications notwithstanding.
The trial courts ultimate conclusion, based upon the totality of the
evidence, including credibility findings, was that Ranieri had reasonable,
articulable suspicion for the stop. Giving full measure to Lyons arguments
(individually and collectively), we cannot say that conclusion was not justified. 5
Moreover, because there was a violation of Kan. Stat. Ann. 8-133,
Ranieri could temporarily detain Lyons, while requesting his drivers license and
vehicle registration, running a criminal history check and issuing him a warning
ticket. See United States v. Karam, 496 F.3d 1157, 1161 (10th Cir. 2007). Our
decisions in United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), and United
States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006), are not to the contrary.
(10th Cir. 2006) (holding officers detention and questioning of the defendant
after stopping her vehicle because he did not observe a license plate were lawful;
although officer was able to observe a registration tag once he stopped the
vehicle, the tag was not displayed in a place and position to be clearly visible
as required by Kan. Stat. Ann. 8-133); see also United States v. DeGasso, 369
F.3d 1139, 1149 (10th Cir. 2004) (concluding the officers detention of the
defendant was lawful because the officer observed a continuing violation of state
law after stopping the defendants vehicle). 6
2. Continued Detention
Lyons argues his continued detention after Ranieri returned his drivers
license, the rental agreement and the alleged warning ticket was unlawful even if
the initial stop was proper.
In addition to being justified at its inception, a lawful traffic stop must be
reasonably related in scope to the circumstances which justified the interference
in the first place. Williams, 271 F.3d at 1266. A seizure that is justified solely
by the interest in issuing a warning ticket to the driver may become unlawful if it
is prolonged beyond the time reasonably required to complete that mission.
Even if the original purpose of the stop was satisfied prior to Ranieri
questioning Lyons and requesting his drivers license and vehicle registration, it
may well be that Ranieris suspicions about the spare tire were enough to justify a
license and registration check. McSwain and Edgerton involved no such
additional facts. This issue is best left for another day since it is unnecessary to
our decision.
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Illinois v. Caballes, 543 U.S. 405, 407 (2005); see also United States v. Wood,
106 F.3d 942, 945 (10th Cir. 1997) (An investigative detention must be
temporary, lasting no longer than necessary to effectuate the purpose of the stop,
and the scope of the detention must be carefully tailored to its underlying
justification.). Therefore, once an officer returns the drivers license and vehicle
registration and issues a warning ticket, he must allow the driver to proceed
without further detention or questioning unless the officer has an objectively
reasonable and articulable suspicion that the driver is engaged in illegal activity.
Karam, 496 F.3d at 1161.
In determining whether an officer had reasonable suspicion to continue to
detain a driver after returning the drivers paperwork and issuing a warning ticket,
we look to the totality of the circumstances to see whether the officer had a
particularized and objective basis for suspecting legal wrongdoing. United
States v. Williams, 403 F.3d 1203, 1207 (10th Cir. 2005) (quotations omitted).
This process allows officers to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them that might elude an untrained person. United States v. Santos,
403 F.3d 1120, 1134 (10th Cir. 2005) (quotations omitted). We give deference to
an officers ability to distinguish between innocent and suspicious actions.
Williams, 403 F.3d at 1207. Reasonable suspicion, however, may not be derived
from inchoate suspicions and unparticularized hunches. Williams, 271 F.3d at
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1268.
The district court concluded that after the drivers license and other
paperwork were returned to Lyons, Ranieri had reasonable suspicion to believe
Lyons was engaged in illegal activity:
Prior to the time that Trooper Ranieri returned defendant Lyons[s] drivers
license and other documents, he had an objectively reasonable suspicion
that illegal drugs were being transported in [Lyons vehicle]. He knew that
the [vehicle] was a rental vehicle traveling east on I-70. He knew the spare
tire was a different brand and a larger size than the tires on the four wheels.
The spare tire looked suspiciously clean and appeared to be carried lower
on the vehicle than normal. It had fingerprints and tool marks on it.
Ranieri knew that spare tires are often used to smuggle drugs. He knew
that defendant Lyons had a criminal history for drug possession and
trafficking. In addition, Ranieri noticed a radar detector in the vehicle and
thought he smelled air freshener.
Under these circumstances, the court believes Ranieri had sufficient
grounds to continue [Lyons] detention to ask questions relevant to drug
transportation and to request consent to search the vehicle.
(R. Vol. 1, Doc. 35 at 12-13.) 7 We agree that these factors, considered in their
totality, provided Ranieri reasonable suspicion to continue to detain Lyons.
Lyons does not challenge the existence of these factors or their relevancy to
the reasonable suspicion analysis. Rather, relying on McSwain, he asserts that
once Ranieri returned his paperwork to him and issued the alleged warning ticket,
the purpose of the stop was satisfied and any further detention was improper.
McSwain is clearly distinguishable. There, once the purpose of the stop was
satisfied by the officer verifying the validity of the temporary registration sticker,
the officer had no further reason to continue to detain McSwain. Here, once the
purpose of the stop was satisfied (issuing Lyons a warning ticket and returning his
paperwork) Ranieri had reasonable suspicion of other criminal activity based
upon his concerns about the spare tire. His continued detention of Lyons to
facilitate further investigation of those suspicions was permissible.
3. Search of Vehicle and Spare Tire
Lyons argues the warrantless search of his vehicle, including its spare tire,
violated the Fourth Amendment. The district court determined (1) the search of
the back of Lyons vehicle, including the visual examination of the spare tire, was
justified by Lyons unequivocal consent to Ranieris request to look in the
back, (2) even if the scope of Lyons consent did not extend to the visual
examination of the spare tire, this examination did not require consent because it
was not a search under the Fourth Amendment, and (3) Ranieris lowering of the
spare tire and cutting it open was justified by probable cause.
a) Consent to Search
Lyons claims his consent to search was not voluntary and even if it was, the
search exceeded the scope of his consent.
(i) Voluntariness of Consent
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In the district court, Lyons argued he never gave Ranieri permission to look
in the back of his vehicle. He takes a different approach on appeal, claiming his
permission to look in the back of the vehicle was not freely and voluntarily given.
He asserts he felt extreme pressure to consent because of the presence of two
police officers and his reluctance to provide consent is evidenced by the fact
Ranieri had to repeatedly (actually, twice) ask for his permission to look in the
back of the vehicle. 8
Normally, we do not review issues raised for the first time on appeal.
United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004). However, this
rule is not jurisdictional and it is within our discretion to address an issue not
raised in the district court. United States v. Jarvis, 499 F.3d 1196, 1201 (10th
Cir. 2007). We generally only exercise this in the most unusual circumstances.
Our discretion allows us to determine an issue raised for the first time on appeal
if it is a pure matter of law and its proper resolution is certain. Id. at 1202.
While the determination of whether Ranieris consent to look in the back was
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and unlocked the back door. (Id.; R. Vol. 3 at 71.) Nothing in the exchange
suggests Lyons grant of permission was involuntary. Indeed, the videotape
shows Ranieris manner and tone of voice when seeking permission to search was
pleasant, not intimidating. See Concepcion-Ledesma, 447 F.3d at 1314-15
(stating an officers pleasant manner and tone of voice are factors demonstrating
voluntariness of consent). The fact Trooper Dean was also present does not affect
our conclusion. While the threatening presence of multiple officers is a factor in
determining whether an individuals consent is voluntary, id. at 1314, it is but one
factor and there is no evidence Deans presence was coercive or threatening. In
fact, when Lyons gave Ranieri permission to search, Dean was standing on the
other side of the vehicle.
(ii) Scope of Consent
Lyons argues that even assuming his consent was voluntary, the search
exceeded the scope of his consent. Specifically, he asserts that when he gave
Ranieri permission to look in the back of his vehicle, he had a right to believe
Ranieri was only going to look in the back of the vehicle, not under it, and
certainly not remove the tire and cut it open.
The scope of the consent determines the scope of the search. United States
v. Osage, 235 F.3d 518, 520 (10th Cir. 2000). In determining the scope of a
defendants consent, [the question is] what a reasonable person would have
understood by the exchange between the defendant and police officer. United
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States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999). A court determines from
the totality of the circumstances whether a search remains within the boundaries
of the consent, viewing the evidence in the light most favorable to the
government. West, 219 F.3d at 1177. Generally, where a suspect does not limit
the scope of a search, and does not object when the search exceeds what he later
claims was a more limited consent, an officer is justified in searching the entire
vehicle. Id. (quotations omitted).
Once Lyons consented to Ranieri look[ing] in the back, Ranieri went to
the back of the vehicle and began searching for the tools to lower the spare tire.
He did not find the tools, but found four cans of Fix-A-Flat Tire. He then
performed an echo test on the spare tire with a stethoscope. After performing
the echo test, he looked under the rear bench seat where he found the tools to
lower the spare tire. We agree with the district court that Lyons consent to
Ranieris request to look in the back allowed Ranieri to search the back of the
vehicle and Lyons does not contend otherwise. Although the district court did not
specifically address the issue, we conclude Lyons consent also permitted Ranieri
to look under the rear bench seat after performing the echo test on the tire.
This conclusion is bolstered by Lyons failure to object to Ranieri searching
under the rear bench seat or otherwise attempting to limit the scope of his consent
(and he had plenty of opportunity to do so while Ranieri was looking in the back
of the vehicle and performing the echo test).
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limited information obtained therefrom). We need not decide this issue, however,
because the scope of Lyons consent extended to Ranieri performing the echo
test.
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Ranieri could have simply hit the spare tire and listened to the resulting
sound without the stethoscope. We do not consider the use of a stethoscope
significant under the circumstances. Use of such sense-enhancing devices by
police officers generally does not affect the Fourth Amendment analysis.
Compare Texas v. Brown, 460 U.S. 730, 739-40 (1983) (police officers use of
flashlight to illuminate interior of car and shifting of his position to obtain a
better view of cars interior not a search) and Rascon-Ortiz, 994 F.2d at 755
(brief visual inspection of undercarriage of vehicle with flashlight and mirror not
a search) with Kyllo v. United States, 533 U.S. 27, 34 (2001) (We think that
obtaining by sense-enhancing technology any information regarding the interior
of the home that could not otherwise have been obtained without physical
intrusion into a constitutionally protected area, constitutes a search -- at least
where . . . the technology in question is not in general public use.) (quotations
and citation omitted). The stethoscope merely enhanced sounds Ranieri could
have heard (like Brown and Rascon-Ortiz) rather than revealed information he
could not have otherwise obtained (like Kyllo).
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Ranieris removal of the spare tire and cutting it open were supported by probable
cause, infra b), we need not address Lyons argument that his consent did not
extend to these actions. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1261
(10th Cir. 2006) (stating consent to search vehicle unnecessary where probable
cause exists).
b) Probable Cause to Search
Another exception to the Fourth Amendments warrant requirement is the
automobile exception. United States v. Sparks, 291 F.3d 683, 690 (10th Cir. 2002).
Under this exception, an officer who has probable cause to believe there is
contraband inside an automobile that has been stopped on the road may search it
without obtaining a warrant. Id. (quotations omitted). If probable cause justifies
the search of a lawfully stopped vehicle, it justifies the search of every part of the
vehicle and its contents that may conceal the object of the search. United States v.
Ross, 456 U.S. 798, 825 (1982). An officer has probable cause to search a vehicle if
under the totality of the circumstances there is a fair probability that the car
contains contraband or evidence. United States v. Jurado-Vallejo, 380 F.3d 1235,
1238 (10th Cir. 2004) (quotations and emphasis omitted). In determining whether
probable cause exists, an officer may draw inferences based on his own experience.
Id. (quotations omitted).
The district court determined that Ranieri had probable cause to lower the
spare tire on Lyons vehicle and cut it open once he observed the cans of Fix-A-Flat
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Tire and confirmed his suspicions that the spare tire contained contraband by
performing the echo test. We agree.
The spare tire on Lyons vehicle was hanging lower than normal. While the
rim of the spare tire was salty and dirty, the tire was clean. The spare tire also
contained fingerprints and tool marks where the rim and tire meet. These facts
suggested the tire had been placed on the rim, and, based on the difference in
weather conditions between the day of the stop and the previous one, that the tire
had been placed on the rim that day. The spare tire was a different brand and larger
than the other four tires on the vehicle. The results of the echo test performed on
the spare tire were consistent with the presence of contraband hidden therein. There
were four cans of Fix-A-Flat Tire in the vehicle, which was unusual considering the
vehicle was a rental. The presence of the Fix-A-Flat Tire in the vehicle also led
Ranieri to the reasonable inference that Lyons was concerned about getting a flat
tire because the spare tire was inoperable. When Ranieri lowered the spare tire, the
vehicle rose up and when Ranieri pulled the tire from under the vehicle, it was
extraordinarily heavy. These factors, as well as Ranieris experience with drugs
being transported in spare tires, demonstrate there was a fair probability that the
spare tire contained contraband.
IV. CONCLUSION
Based on Lyons enforceable waiver of appellate rights, we DISMISS his
appeal challenging the denial of his motion to dismiss the indictment. We
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